Plumley et al v. Progressive Classic Insurance Company

Filing 34

ORDER granting in part and denying in part Progressive Classic Insurance Company's 21 MOTION to Compel Discovery Responses as more fully set forth herein; denying Plaintiff's 29 MOTION to Compel Discovery Responses; the parties shall bear their own costs. Signed by Magistrate Judge Mary E. Stanley on 4/26/2012. (cc: attys) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON

JAMES PLUMLEY, et al.,
Plaintiffs,
CASE NO.: 2:11-cv-00311
PROGRESSIVE CLASSIC INSURANCE
COMPANY,
Defendant.
ORDER
Currently pending before the court are (1) Progressive Classic Insurance
Company’s Motion to Compel Discovery Responses, filed March 2, 2012 (ECF
No. 21); and (2) Plaintiffs’ Motion to Compel Discovery Responses, filed March
15, 2012 (ECF No. 29). The parties have responded (ECF No. 31) and replied
(ECF No. 32) to Progressive Classic Insurance Company’s (“Progressive”)
Motion, and Progressive responded to the plaintiffs’ Motion (ECF No. 33),
making the matters ripe for decision.
Progressive’s Motion
Progressive served discovery on the plaintiffs, and Progressive agreed to
refrain from filing a motion to compel until February 2, 2012. The plaintiffs filed
responses on February 1, 2012. Progressive argues that the plaintiffs’ responses
to interrogatory numbers 3, 4, 5, 11 and 12 and responses to request for

production numbers 1, 2, 6, 10, 11, 12, 13, 14 and 15 are insufficient. (ECF No. 21,
pp. 1-2.)
In response, the plaintiffs argue that they were unable to answer
Progressive’s discovery completely because Progressive served incomplete
responses to the plaintiffs’ discovery served on Progressive: “Plaintiffs assert it
was impossible to answer the questions requested by Defendant without having
the discovery that was requested, which resulted in Plaintiffs being unable to
supplement their discovery.” (ECF No. 31, p. 2.) Because neither party complied
with the other’s request to supplement, the above-referenced Motions were filed.
In reply, Progressive points out that the plaintiffs did not complain in a
timely manner about the deficiencies contained in Progressive’s responses to the
plaintiffs’ discovery. Progressive further asserts that James Plumley’s discovery
responses do not support his contention that any deficiencies in his responses are
due to alleged deficiencies in Progressive’s discovery responses. (ECF No. 32, p.
2.)
Plaintiffs’ Motion
The plaintiffs served the at issue discovery on November 29, 2011, and
Progressive filed responses on December 20, 2011.

On February 28, 2012,

plaintiffs’ counsel wrote to Progressive’s counsel regarding insufficiencies in the
responses. Progressive failed to respond to the letter. (ECF No. 30, pp. 1, 4.)
Progressive argues that it was not contacted by the plaintiffs until March 2,
2012, regarding Progressive’s discovery responses, and that it did not receive the
February 28, 2012 letter. Progressive argues that the plaintiffs’ Motion, filed
March 15, 2012, is untimely and should be denied. Progressive points out that
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the Motion was filed after February 1, 2012, the discovery cut off deadline and
two and a half months after the plaintiffs received Progressive’s responses. (ECF
No. 33, pp. 1-2.)
Analysis
The court has carefully reviewed and considered both Motions. The court
finds that the issues raised in plaintiffs’ Motion to compel are waived as untimely.
“Motions to compel … not filed within 30 days after the discovery response or
disclosure was due are waived, and in no event provide an excuse, good cause or
reason to delay trial or modify the scheduling order.” Local Rules of the United
States District Court for the Southern District of West Virginia, Local Rule of Civil
Procedure 37.1(c).

Progressive filed responses to the at issue discovery on

December 20, 2011, making any motion to compel due on or before January 19,
2012. The Motion was untimely and, as a result, must be denied.
Regarding Progressive’s Motion, it was filed in a timely manner, and while
the plaintiffs argue that they could not respond because they lacked the discovery
responses from Progressive which were necessary to respond to the at-issue
discovery from Progressive, a review of the discovery indicates this is not entirely
the case.

The court finds that plaintiffs should provide full and complete

responses to interrogatory numbers 3, 4, 5, 11 and 12. Regarding request for
production numbers 1, 2, 6, 10, 11, 12, 13, 14 and 15, the court finds that the
plaintiffs’ responses are adequate and, as a result, Progressive’s Motion is denied
as to these requests. As to request for production number 6 in particular, the
plaintiffs have indicated they have nothing other than what Progressive has
produced. The court finds that the plaintiffs need not produce documents that
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their expert, Vince King, may possess because of his work in other cases related
to Progressive.
Based on the above, it is hereby ORDERED that Progressive Classic
Insurance Company’s Motion to Compel Discovery Responses is GRANTED in
part and DENIED in part as set forth more fully above. It is further hereby
ORDERED that Plaintiffs’ Motion to Compel Discovery Responses is DENIED.
The parties shall bear their own costs.
The Clerk is directed to transmit this Order to all counsel of record.
ENTER: April 26, 2012

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